Dr. Z.A. Azif Principal (Under Suspension), Mannaniya College of Arts & Science, Pangode, Kallara, Thiruvananthapuram - Petitioner v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **WP(C).No.22680 OF 2018(H)** ## **PETITIONER:** **DR.Z.A. AZIF PRINCIPAL (UNDER SUSPENSION), MANNANIYA COLLEGE OF ARTS & SCIENCE, PANGODE, KALLARA, THIRUVANANTHAPURAM - 695 609, RESIDING AT ZAKKIR MANZIL, VANCHUVAM, CHULLIMANOOR P.O., NEDUMANGADU. THIRUVANANTHAPURAM - 895 541** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH** ## **RESPONDENT:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001. 3 THE UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM - 695 001. 4 THE CHAIRMAN GOVERNING BODY MANNANIYA COLLEGE OF ARTS & SCIENCE, PANGODE, KALLARA, THIRUVANANTHAPURAM - 695 609.** **WP(C) No.22680 OF 2018(H)** **2** **5 THE MANAGER MANNANIYA COLLEGE OF ARTS & SCIENCE,PANGODE, KALLARA, THIRUVANANTHAPURAM - 695 609.** **BY ADV. SRI.BRIJESH MOHAN BY ADV. SRI.K.JAJU BABU SR. BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA BY ADV. SMT.M.U.VIJAYALAKSHMI** ## **GOVT. PLEADER SMT. RAJI T. BHASKER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.22680 OF 2018(H)** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 12[th] day of December, 2019**_ Petitioner, who was working as Principal of the Mannaniya College of Arts & Science, Pangode, is before this Court seeking to set aside Exts.P1, P2, P4 and P5 and to direct respondents 4 and 5 to reinstate him in service with effect from 30.08.2016 and to grant him arrears of salary with consequential benefits. 2. The petitioner states that he entered service as Lecturer in Physics in the Mannaniya College of Arts & Science, on 11.08.1995. The petitioner was promoted as Principal of the College in the year 2010. It is an Aided College affiliated to the 3[rd] respondent-University of Kerala. The petitioner states that he had some difference of opinion with the brother-in-law of the Manager of the College. Therefore, he was suspended from service pending **WP(C) No.22680 OF 2018(H)** **4** disciplinary proceedings, on 30.08.2016 as per Ext.P1. Though the suspension could not have been continued beyond three months period without sanction of the Vice Chancellor of the University, the suspension continued beyond three months without any such sanction. 3. Ext.P2 memo of charges dated 30.08.2016 was served on him by the 5[th] respondent-Manager. The allegations in Ext.P2 were vague and frivolous. Nine charges were levelled against the petitioner and all such charges were related to financial transactions of the petitioner. The petitioner submitted Ext.P3 reply dated 18.10.2016, denying the charges in toto. 4. An Advocate was appointed as Enquiry Officer who, after the enquiry, submitted Ext.P4 report dated 28.03.2018 holding that charge Nos.1, 6, 7, 8 and 9 levelled against the petitioner are proved. Ext.P5 show-cause notice dated 09.05.2018 was served on the petitioner, to which the petitioner submitted Ext.P6 reply dated 22.05.2018. The 5[th] respondent, without considering any of the legal grounds **WP(C) No.22680 OF 2018(H)** **5** taken by the petitioner in Ext.P6, imposed the penalty of compulsory retirement on the petitioner as per Ext.P7 order dated 31.05.2018. The petitioner challenges the impugned orders including the enquiry report and the order of compulsory retirement on various grounds. 5. Though the petitioner has urged various grounds in support of his contentions, I do not deem it necessary to go into all such contentions to decide the issue. The charges levelled against the petitioner are as follows:- _“1. That you, Dr. Z.A. Azif, while working as Principal in the Mannaniya College was in the habit of borrowing huge amounts from parents and general public in the pretext of doing some business and you have finally swindled huge sum of money which created a precarious situation and thus you could not attend the college. Hence, you went on leave from 09.12.2015 to 23.12.2016._ _2. The University of Kerala vide their letter dated 18.01.2016, forwarded a complaint to the College for remarks. This complaint was that you have swindled crores of Rupees from many people. You were doing some shady business through internet during office hours. You had rudely behaved to the students, victimised them teachers and other staff members._ **WP(C) No.22680 OF 2018(H)** **6** _3. The Deputy Director of Collegiate Education, Kollam had also forwarded a similar complaint vide his letter dated 24.02.2016._ _4. On 30.12.2015, a petition on behalf of the parents of the College was received and it alleged that you have swindled a sum of Rs.28 crores from many people and requested the Management to intervene in the matter._ _5. On 26.12.2015, one Sherif, on behalf of the Action Council of the College forwarded a petition alleging that you had cheated to the tune of Rs.30 crore from many people including the parents of the College for doing online business and share marketing._ _6. On 15.07.2016, the management received a mass petition from the teachers of the College, which was signed by 16 teachers and another petition from the non-teaching staff which was signed by 10 staff members, wherein they alleged of your illegal financial dealings. They have alleged that the teachers and other office staff were not permitted to meet you in your office before 3.30 pm and you put a notice in this effect in front of your office. But at the same time, some individuals who were known to the local residents as known money lenders were seen spending hours in your office room without any restrictions. It is also alleged that you have borrowed huge amount of money from many local lady residents promising huge interest. Many of them have lost their jewelleries and money and they used to come to the College to get it back._ _7. On 08.08.2016, one Smt.Janisa Beevi M, Ajmal Cottage Pulippara, Pangode forwarded a complaint to the Management that you borrowed a_ **WP(C) No.22680 OF 2018(H)** **7** _total sum of Rs.13.75 lakh from her on 20[th] November, 2015 and 8[th] December, 2015. She states that on several occasions she came to your house at Vanchuvam for getting the money returned. But of no avail. On 09.01.2016, your father returned her a sum of Rs.1 lakh and the balance Rs.12.75 lakh is still pending with you. On 08.12.2015, you contacted her over phone and told her “You are not coming to the College and you are on leave.......you are going to do online business in crude oil and gold.....thereby you will earn Rs.4 lakh a day.” She further states that you have assured her on many occasions over phone that you will return the money borrowed. But you never kept your words and have been cheating her. She requested the Management to intervene to get her money you borrowed._ _8. On 03.04.2016, there appeared a news item in the Mathrubhumi Daily stating that you have swindled money to the tune of Rs.1.5 crore from one Sidheek, Sidheek Manzil, Uliyamcode, Pangode on the pretext of delivering flat to him. It was also stated that a case was filed by him against you in the court and the court directed the Circle Inspector Venjaramoodu to conduct an enquiry into the case. It was also stated in the news that you have swindled nearly a sum of Rs.15 crores from many people from Pangode on the false pretext of investing in some business. Though this news item got wide publicity, you did not give any rejoinder to it and it is tantamount to admitting the charges._ _9. Several persons came to the college during November and December 2015, demanding money. To avoid meeting with the people, you went on leave from 09.12.2015 to 23.12.2016 on personal ground. The above untimely application_ **WP(C) No.22680 OF 2018(H)** **8** _for leave and such long absence from the College on leave has constrained the Management that the allegations raised by various quarters are true and it affected the very reputation of the College. People are frequenting to the College demanding repayment of money is also affecting the smooth functioning of the College. The complaints raised by the teachers and non-teaching staff against your misbehaviour is also affecting the cordial and harmonious atmosphere in the College.”_ The Enquiry Officer held charge Nos.1 and 6 to 9 as proved and Charge Nos.2 to 5 as not proved. The disciplinary authority concurred with the findings of the Enquiry Officer and imposed the penalty of compulsory retirement on the petitioner. In the circumstances, the sustenance of the penalty on the basis of charges 1 and 6 to 9 alone need be looked into by this Court. 6. Charge No.1 is that the petitioner, while working as Principal, was in the habit of borrowing huge amounts from parents and general public in the pretext of doing some business and has finally swindled huge sum of money, which created a precarious situation and thus, he could not attend the College and was on leave from 09.12.2015 to 23.12.2016. **WP(C) No.22680 OF 2018(H)** **9** The charge does not indicate as to any specific instance of the alleged borrowing by the Principal from parents or general public. The further allegation contained in Charge No.1 is that “the petitioner has finally swindled huge sum of money which created a precarious situation by which the petitioner could not attend the College”. Here also, material particulars to defend the bald allegation are lacking. Admittedly, the period of leave of the petitioner from 09.12.2015 to 23.12.2016 was sanctioned by the authorities. 7. Charge No.6 is that the Management received a mass petition from teachers and another petition from non-teaching staff, where they have made allegations of illegal financial dealings. Here also, there is no indication in the charge sheet as to the nature of the alleged financial dealings. It has been further alleged that teachers and non-teaching staff were not permitted to meet the petitioner but, some individuals, who were known to the local residents as money lenders, were seen spending time with him. Neither the name or identity of the said individuals nor the date or time of their **WP(C) No.22680 OF 2018(H)** **10** meeting with the petitioner, is indicated. There is further allegation in charge No.6 that the petitioner has borrowed huge amount of money from many local lady residents promising huge interest and they have lost their jewellery and money. Name or identity of any of such local lady residents or the amount of borrowal, are not indicated in the charge sheet. 8. Charge No.7 states that on 08.08.2016, one Smt.Jenisa Beevi M. forwarded a complaint to the Management that the petitioner borrowed ₹13.7 lakhs from her, which was not repaid. It is further alleged that the petitioner's father returned her a sum of ₹1 lakh. In spite of petitioner's assurances to repay the amount, no repayment was made and thereby cheated the complainant. 9. Charge No.8 is that there appeared a news item in Mathrubhumi Daily stating that the petitioner has swindled money to the tune of ₹1.5 Crore from one Sidheek on the pretext of delivering flat to him and on complaint, court directed the Circle Inspector to conduct an enquiry in the case. It is stated in the charge sheet that though this news **WP(C) No.22680 OF 2018(H)** **11** item got wide publicity, the petitioner did not give any rejoinder to it and it is tantamount to admit the charges. One fails to understand how a news item appeared in a Daily can be a misconduct on the part of the petitioner, merely because the petitioner did not give any rejoinder to the newspaper. 10. Charge No.9 is that several persons came to the College during November and December, 2015 demanding money and to avoid meeting them, the petitioner went on leave from 09.12.2015 to 23.12.2016. The untimely application for leave and long absence of the petitioner from the College has constrained the Management that the allegations raised by various quarters are true. It is further alleged that people are frequenting to the College demanding repayment of money. It has to be noted that the allegation is not that the petitioner's long absence has affected the functioning of the College. The allegation is that his long absence constrained the Management to believe that the allegations against the petitioner are true. In charge No.9 also, there are no particulars of the persons who have **WP(C) No.22680 OF 2018(H)** **12** allegedly came to College demanding money, nor are there any dates or time of visit of such persons. 11. A plain reading of the charge sheet would show that essential and material particulars required for defending charge Nos.1, 6, 8 and 9 were not disclosed to the petitioner. Admittedly, the charge sheet was not supported or accompanied by any statement of facts in support of the charges. The petitioner was left to guess the identities of parents and general public from whom he allegedly borrowed money and which was allegedly swindled. The petitioner was left to guess which of his acquaintances were treated as known money lenders by the disciplinary authority, in order to answer the charges. The petitioner was also kept in dark as to the identity of people frequenting the College allegedly demanding repayment of money. In short, the petitioner was pushed into a dark room to fight with an invisible enemy. 12. The Apex Court has frowned upon the tendency of employers in issuing vague charge sheets to delinquent employees, which cannot be effectively defended by **WP(C) No.22680 OF 2018(H)** **13** employees. The Apex Court in _**State of Uttar Pradesh v. Mohd. Sharif (Dead)** [AIR 1982 SC 937]_ held that when material particulars of the charges including date and time of the incidents are not disclosed to the delinquent, the delinquent will be prejudiced in the matter of his defence. A Division Bench of this Court in the judgment in _**Karunakaran v. Zamorin Raja of Calicut** [2019 (4) KLT 244]_ held that to ask an employee to defend himself against a general allegation of misconduct without specification of particulars, denies to him an effective right of defending himself. In view of the afore judgments of the Apex Court and this Court, it has to be held that the conclusions by the disciplinary authority on the finding guilt of the petitioner in respect of charge Nos.1, 6, 8 and 9 are unsustainable. 13. The learned Senior Counsel appearing at the instance of the respondents argued that charge No.8 which was based on a newspaper report is sustainable in the light of the judgment of this Court in _**Radhakrishnan M. v. Kerala State Civil Supplies Corporation, Kochi and another** [2015_ **WP(C) No.22680 OF 2018(H)** **14** _(4) KHC 652]._ In the said judgment, a learned Single Judge of this Court held that violation of law, degradation of institution, indulging in activities affecting morality and decency, negligence, threat, etc. are all misconducts entitled to be enquired by the employer and therefore, a newspaper report can amount to misconduct liable to be proceeded in an enquiry. The said decision related to a misconduct on the part of the petitioner therein and the charge was that the petitioner convened press conference of various newspapers without securing permission from the Authority and made allegations against the Government and his employer-Corporation. The findings of this Court under such circumstances, cannot be applied to the case on hand. 14. However, as regards charge No.7, the charge sheet contains material particulars, sufficient to enable the petitioner to defend. The allegation is that petitioner borrowed ₹13.75 lakhs from one Smt.Janisa Beevi M.; ₹1 lakh was received towards repayment and the full amount is not repaid by the petitioner. The dates on which the alleged payments were **WP(C) No.22680 OF 2018(H)** **15** made by the said Janisa Beevi and date of receipt of part repayment, are given. The said complainant was examined as MW 9 and she gave statement in tune with her complaint. On the basis of the complaint made, statement given by MW 9 and her demeanor, the Enquiry Officer found the charge as proved. 15. The learned counsel for the petitioner contended that Crime No.1247/2017 was registered at the instance of the said Janisa Beevi in Pangode Police Station within the jurisdiction of the Judicial First Class Magistrate's Court-II, Nedumangad in respect of the same allegations contained in charge No.7. The police, after investigation, found that Janisa Beevi's complaint was a false case and the said Janisa Beevi had no previous acquaintance with the petitioner prior to the alleged dates of borrowals. A Refer Report was filed by the Deputy Police Superintendent on 15.11.2018 before the JFCM-II, Nedumangad. A copy of the said Refer Report was produced as Ext.P11. Relying on the judgment of the Apex Court in _**Lekh Raj v. Muni Lal and others** [(2001) 2 SCC_ **WP(C) No.22680 OF 2018(H)** **16** _762]_ , the learned counsel for the petitioner argued that if events subsequent to the filing of case are legally brought on record, the court must enter into and decide the questions raised. 16. The said judgment relied on by the counsel for the petitioner was delivered by the Apex Court in a rent control case, where subsequent facts were brought on record when the revisional proceedings were pending before the High Court. The said judgment, therefore, has no application as such in writ proceedings. However, in view of the nature of detailed investigation made by the police as reflected from Ext.P11 report which specifically finds that it was a false case and the complainant had no pre-acquaintance with the petitioner to advance huge amounts as borrowal, I am of the opinion that the respondents are liable to be compelled to reconsider the findings on charge No.7, in the interest of justice. The upshot of the discussion as detailed above is that the impugned enquiry proceedings are bad in law in so far **WP(C) No.22680 OF 2018(H)** **17** as charge Nos.1, 6, 8 and 9 are concerned, due to the vagueness of charges. It is declared that the enquiry proceedings to that extent are vitiated as the petitioner was denied reasonable opportunity to defend those charges. As regards charge No.7, in view of Ext.P11 Refer Report of the Deputy Police Superintendent, District Crime Branch, Thiruvananthapuram Rural, the findings on charge No.7 by respondents 4 and 5 are liable to be reviewed. This is especially so because the nature of transactions constituting the alleged offence is financial and contractual in nature. Dehors all other charges (which are found to be not proved by the Enquiry Officer or unsustainable by this Court) whether the facts constituting charge No.7 even if found to be proved on review by the respondents, the question whether such a financial transaction should be treated as a misconduct warranting punishment in a domestic enquiry, is to be looked into by the respondents. The question of proportionality of punishment is also a matter to be considered by the respondents since charge Nos.1, 6, 8 and 9 are found **WP(C) No.22680 OF 2018(H)** **18** unsustainable. Therefore, respondents 4 and 5 are directed to reconsider the findings on charge No.7 in the light of Ext.P11 Refer Report of the Deputy Police Superintendent, within a period of four weeks from the date of receipt of a copy of this judgment, in the light of the observations made hereinabove. Exts.P5 and P7 are set aside and the writ petition is disposed of with the said directions. Sd/- **N. NAGARESH, JUDGE** aks/22.01.2020 **WP(C) No.22680 OF 2018(H)** **19** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE ORDER DATED 30.8.2016 ISSUED BY THE 5TH RESPONDENT EXHIBIT P2. TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED 30.8.2016 ISSUED TO THE PETITIONER BY THE 5HT RESPONDENT EXHIBIT P3. TRUE COPY OF THE REPLY DATED 18.10.2016 SUBMITTED BY THE PETITIONER TO EXT. P2 MEMO OF CHARGES EXHIBIT P4. TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER EXHIBIT P5. TRUE COPY OF THE SHOW CAUSE NOTICE DATED 1.5.2018 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT EXHIBIT P6. TRUE COPY OF THE REPLY DATED 22.5.2018 SUBMITTED BY THE PETITIONER TO EXT. P5 SHOW CAUSE NOTICE** **WP(C) No.22680 OF 2018(H)** **20** **EXHIBIT P7. TRUE COPY OF THE ORDER DATED 31.5.2018 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER** **EXHIBIT P8 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 30.3.2016 ISSUED BY DR.B.ROBIN GURU SINGH.** **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION NO.M35/16 DATED 22.8.2016 ISSUED BY THE 5TH RESPONDENT MANAGER TO THE PETITIONER** **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 27.8.2016 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT MANAGER EXHIBIT P11 TRUE COPY OF THE FINAL REPORT DATED 15.11.2018 SUBMITTED BY THE INVESTIGATING OFFICER (DEPUTY POLICE SUPERINTENDENT) BEFORE THE JFCM COURTII, NEDUMANGAD** ## **RESPONDENT'S EXTS:** **R5(A) TRUE COPY OF THE FIR NO.1252/2016 FILED BEFORE THE JFCM COURT-II, NEDUMANGAD** **R5(B) TRUE COPY OF THE REMAND APPLICATION SUBMITTED BEFORE THE JFCM COURT-II, NEDUMANGAD ON 12.10.2017** **R5(C) TRUE COPY OF THE PETITION SUBMITTED BY SIDDIQUE A.S. BEFORE THE SUPERINTENDENT OF THE COLLEGE AND SUPPORTING DOCUMENTS.**